Head of Paintsil, Paintsil & Co., Kweku Paintsil

Head of Paintsil, Paintsil & Co. has advised lawyers to preserve drafts of testaments they draw for clients for the purpose of evidence should the validity of the will be challenged in court.

According to him, in the incidence of the testament being challenged in court, the drafts from the drawing of the will, will serve as evidence proving that the testator was of sound mind and actively involved in the making of the testament.

This, he told the host of JoyNews’ The Law, Samson Lardy Ayenini, will be significant in protecting the credibility of the lawyer in the court of law.

“I think the context in which I want us to place our discussion is the fact that in Ghana nobody dies naturally. Even a 90 year old man, if he were to die today, somebody will have some other cause for his death other than natural. So there’s always superstition.

“Flowing from this general way of doing things is the fact that because the person has not died naturally, people then begin to question every testamental script that comes out. There are variety of reasons.

“People begin to make allegations that at the time that the will was made the testator was non compos mentis. At the time that will was made, the testator was being administered a course of drugs that made it incapable for him to understand or to appreciate or to know what he was doing.”

“And my first point is that every time these issues come up in a court of law, it’s the credibility of the lawyer who prepared the will which is at stake.  And for that reason and that reason only, lawyers can take precautions,” he stated, June 27.

According to him, although these precautions are not mentioned in the law, they are practical measures borne out of years of experience and have come in handy to avoid never-ending litigations.

Recounting a past experience, he explained why it was important to keep drafts.

“So one of the first things that every lawyer must do – I didn’t know this until I myself got involved in a certain litigation in court in which we had to call an English solicitor who had to come to court to give evidence.

“And for the first time, the kind of things that we regularly throw away, the manuscripts, apparently is part of the preparation of the will. When you do a will, you do draft and whatever and you take it to the client and he corrects it and whatever, it was part of his folder.

“That was the clearest evidence that the testator had participated in the various stages of drawing the will.  And until that day, I myself didn’t even know the importance of this … so it’s an essential part.”

Another practical measure he stated was the use of cameras to record testators while they recite their testaments for the drafting of the will.

He said, “The other point is that, by the grace of God, now we’ve got mobile phones, we’ve got technology, whatever. These days I hardly prepare a will without letting the testator speak into a video acknowledging that this is his own will and he’s doing it of his own freewill and identifies the surroundings and the people present, he speaks into it.”

Recounting from experience once again, he said, “We had one client who lay dying at 37 Military Hospital of cancer.

“And when the information got to us, she was in a state that doctors have declared that you’re going. But then it just occurred to me that, no, let’s video this thing. So we took in a video, hired a cameraman, at that time even these mobile phones were not as popular as these days.

“So we went in there and let her speak into it and of course after making the will within about two, three weeks she was dead.  And then predictably, the struggle started. You know what I did, I just wrote a letter.

“Interestingly, the agitation was coming from her own mother and she was challenging everything and this woman had been brought in by a colleague of hers who was a coworker and so what I did was to write to them that we got instructions and when we got instructions, these are the things that we did, and we filmed this thing.

“But we are not obliged to let you see this video and that we have this video. We dare you to go to court and when we go to court we’ll come and show it to the court and that ended the matter.”